Note On The Final Dobbs Opinion [Corrected]

A threshold question before informed discussion can commence is “How did the final Dobbs v. Jackson Women’s Health Organization opinion change from the unethically leaked version everyone has been arguing about for many weeks?” A related question is whether the fact that the opinion was leaked, causing threats to the justices and harassment at their homes as well as a full-throated primal scream by abortion advocates, which encompasses most journalists and the entire Democratic Party, had any ameliorating effect on Justice Alito’s majority opinion.

The answer to that question is: “Nope! None whatsoever.” The uproar didn’t even dissuade Chief Justice Roberts from joining the majority, making Dobbs a 6-3 decision, though Roberts did write that he did not approve of over-ruling Roe.

As for the first, the answer is “Nothing substantive, just the additions one would expect in a final SCOTUS opinion.”

The final opinion has the kinds of edits one would expect in the journey from draft to final:  footnotes have been deleted or added,  sentences have been switched around and there have been refinements in  spelling, grammar and formatting. T

he most change i the syllabus or headnote, which appears at the  beginning of the opinion and outlines the details of the case and how the Court approached it. Every opinion has a syllabus, and this one, like the others summarizes the Court’s ruling: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

The dissents were not completed when Alito wrote his draft, so the most substantive addition is his critique of the dissenting opinion filed by Associate Justices Breyer,  Sotomayor and Kagan. He writes,

“The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy… [the dissent’s] failure to engage with this long tradition is devastating to its position.”

Alito also addresses the concurring opinion of Chief Justice Roberts. Alito notes that it “reproves us for deciding whether Roe and Casey should be retained or overruled,” a position Alito disagrees with but conceded that is motivated by Roberts’ “desire for judicial minimalism.”

But that’s it. The opinion is essentially what everyone has been bloviating about all this time, assuming the bloviators really read the leaked version, which we know most did not.

73 thoughts on “Note On The Final Dobbs Opinion [Corrected]

  1. Maybe it’s time for Planned Parenthood to reach out to the resistance or armed Antifa types and have them warn some of these folks that if they want a war, they’ve found one. Maybe it’s also time to start hunting down loud-mouth anti-choice advocates and killing them. They pull a knife, pull a gun. They send someone to the hospital, send one of them to the MORGUE!

    • Valkygrrl,

      I remember when pro-choice types condemned the actions of those like Eric Rudolph. They condemned the assassination of abortion doctors. It sounds like you are willing to concede that moral high ground.

      -Jut

      • Not completely sure actually. As you’ve probably guess by now the above comment was “written” a week ago–in consultation with Jack and with his full approval–as an exercise to uncover the double standards around here. I held it for the day it would appear spontaneous.

        There are all sorts of aspersions being cast on me when the original version of the comment was passed by–and by people who commented in the original thread and can’t claim ignorance–other people who ARE calling for violence aren’t being called out for it even now.

        It’s unfortunate that none of them are going to get the lesson.

        C’est la vie.

    • Is having the child a legitimate choice. If so, why does Janes Revenge fire bomb facilities that help people that chose differently?

      Abortion is still a choice that is available. I don’t want to hear about logistics because if I need a specialist I have to travel substantial distance to get many services

    • Pro-murder advocates are pro-murder? Who would have guessed? Such a shock!

      Abortion has not been made illegal. There are large swaths of the US where people who want to murder their children can go do that. Leftwing terrorists’ desire to put a murder-clinic on every street corner is not a justification for terrorism. Terrorists don’t actually need a justification for terrorism, of course. They are terrorists because they are evil in the first place. Calling for the murder of people who oppose murder is par for the course.

      • Context is everything.

        1. Any one-off comment that nicks the civility rules will be allowed from a veteran and contributing commenter, which valkygrrl is.
        2. As DC already noted, the comment is a deliberate evocation of a comment from the esteemed, if sometimes impulsive, Steve-O, that would not pass muster if it were an EA entry effort.
        3. Thus the comment is something of a trap designed to flag double standards.
        4…which is a valid justification for it.

          • Whose standards does that even remotely test for inconsistency?

            Everyone who let Steve’s comment pass yet had something to say when I used the same words with different names.

            Rationalizations 2A, 11, 13, 14, 21, 34, 38B, and 47 deal with some of the different ways one excuses or condemns based on the participants rather than the conduct.

            It’s an ethics lesson.

            • Whoa: Before you make that claim you need to evaluate the context of my response. My response was to Steve _O’s to highlight the hypocrisy and double standards of one side to protect itself while disallowing the other the same protections. My reference to a mob storming a pro- life center was in to draw a parallel to the killing of the unarmed Ashley Babbit by uniformed Capitol police who was immediately cleared of any wrongdoing – in secret no less – yet the administration routinely condemns police shootings before knowing the facts. I typically do not respond to calls for violence and did not respond to your statement. In fact, I make a point not to engage you because you often resort to name calling. Further, setting a trap may be a clever debate tactic to highlight hypocrisy, but when you are woefully silent on the acts of Jane’s revenge tactics the stool that allows you to take a superior position is missing a leg.

              • Yes it is a great shame i haven’t been constantly deploring a group I never even heard of till a week ago and have done no research on. So good of you to ask. I do not support the the bullshit of accelerationist Bernie bros and their ideological sisters.

                Fuck you, fuck you very much.

            • There is a difference and you know it. Whether you admit it or not is your choice.

              The Left – that includes the Marxists, central planners, socialists, antifa, BLM, Jane’s Revenge and other pro-abortion activists – use political violence to achieve their goals.

              We saw it on Madison, WI, where demonstrators stormed the Capitol building and occupied at for months to protest Scott Walker, I still can’t figure out why.

              We saw it on response to Trayvon Martin Michael Brown, Freddie Gray (sp?), and other supposedly questionable police involved deaths of black men.

              We saw it in the 2020 Summer of Lo . . . erm . . . St. George of the Floyd, where mostly peaceful protests destroyed lives, buildings, businesses, and communities, attacking and burning churches, looting businesses, resulting in fear and billions of dollars in damages. Those honorable, peace living and living activists took over parts of large cities for weeks and months, often aided or supported by the brilliant local politicians who have them space to break things.

              We saw the January 2016 Lesser Insurrection when mostly peaceful demonstrators broke stuff to prevent King Trump’s coronation to prevent his Reign of Terror. Last year’s January 6th Lesser Insurrection looks like a Gwar concert in comparison.

              Just yesterday Pres. Biden and V.P. Harris, Reps. Pelosi, Ocasio-Cortez (who says she needs a raise because she can’t live on the paltry $174k a year salary she gets as a congresswoman), Waters, etc., declared SCOTUS illegitimate and vowed to ignore one-third of the government. Jane’s Revenge promised days of rage and has openly promoted violent action, staging protests outside the homes of the justices. They have attacked pro-life/anti-abortion facilities, and have vandalized churches.

              So, yeah, spare me your little ethics consistency gotcha quiz. I didn’t respond to Steve’s initial comment with moral and ethics outrage you suggest was required because I read it in context to what the Radical Left has done over its entire existence: violence, social unrest, and political upheaval because the Radical Left’s goal require any means necessary.

              jvb

          • No “coordination,” MW. Off site, valkygrrl asked for what standards I applied to Steve-O’s comment, and got them, which I have explained many times before. She asked if I would apply the same standard to a deliberately similar comment following the eventual Dobbs decision should she author it.

            What other possible answer could there be to that but “yes”? It was and is obvious to me that one motive was to see if any commenter would find her rhetoric unacceptable who did not express the same objection to the earlier comment.

            Certainly the “echo chamber” concern expressed by many here made that a legitimate exercise.

            • I didn’t like the comment about sending people to hospitals & morgues when I first saw it. It was inconsistent with what I expect on EA; it sounded more like hyperbole from the left that could end up getting someone killed. I figured Jack would nuke it and didn’t know there was going to be a quiz. I didn’t study, but violence is usually wrong, no matter the motive.
              I have my own IIDTSX…and knew that conservatives were unlikely to become violent if Roe had been upheld. The Left, however…

            • I guess I misunderstood what valky meant when she said this had been crafted a week ago in full consultation with you.

              Nevertheless it’s still a pretty unreliable “gotcha” for the purpose. In a fluid discussion group like this, plenty of people can miss the original offending comment (I sure did) and see this one and comment on it. No hypocrisy shown in inconsistent commenting.

              Plenty of people could see that the original offending comment had already had a thorough response regarding its offensiveness and decided there’s no reason to add one then, yet add one here, which frankly, I also only see one comment directly addressing the offensiveness of Valky’s. Again, no hypocrisy shown in inconsistent comments.

              So it strikes me as pointless I guess.

        • Yup, hearing about assaults on churches and pregnancy clinics by pro-abort fascists and domestic terrorists kinda makes my blood boil.

          • There’s one for the rationalization list.

            “I was angry.”

            And I thought you were getting treatment for your hysteria.

            • It’s exactly the same argument made by Democrats to distinguish Schumer’s threats against the SCOTUS justices from Trump’s supposed “insurrection”-triggering comments, in fact….

              • Exactly right. After two summers ago I don’t think anyone on the left has the moral high ground to argue for restraint. It’s not supposed to come to this. We aren’t supposed to hurl insults and threats at each other because we don’t agree. We sure is the devil or not supposed to act on those threats. Unfortunately, like dominos, once one gets tipped, the last one goes over very quickly. At this point we are no longer under the thrall of a virus that everyone fears will kill you as soon as you venture outdoors. There is a very good chance that assaults will be met with resistance. I think they already have, given the number of arrests last night. I’ve also heard from some of my friends who are Catholic like myself, and they have told me of people coming around churches asking questions like which Mass is the most heavily attended and whether the doors are locked after the completion of Masses and other events. Now why would that make anyone suspicious?

    • I thought insurrection was bad? Now you’re arguing for a civil war? I don’t think this will end like you expect. Few on the left are armed and would be vastly outnumbered by those that are if they try anything

      • Matthew B,
        The true believers on the fascist Left become creepy excited when they envision something akin to Sherman’s March of1864 except this time they’re the ones wearing blue, but as you say “I don’t think this will end like [they] expect.”

      • There is a distinction between and betwixt “good insurrections” and “bad insurrections”. Trump is bad; therefore, anything associated with Trump is Orange Man Bad. Roe supporters have the moral high ground so anything they do is good. QED.

        jvb

    • Since Planned Parenthood only derived 3% of it’s revenue from killing babies, it really doesn’t have much to lose in states that choose to protect the unborn.

      Or was the Left lying when it said this about Planned Parenthood?

    • Like, Valky, abortion is still permitted in the majority of places – to the degree that would make even the most liberal European nations blush – and those guys are the ones that progressives idolize.

      Do you have a problem with greater localization of democracy? Or do you think everything should be dictated by a central authority?

    • Maybe it’s time to actually legislate Democrat priorities instead of relying on judicial activism.

      Let’s be real: There is no constitutional right to have an abortion. Literally anywhere. This ruling, whether you’re pro-life or pro-choice, is absolutely legally sound. But that doesn’t mean that you cannot have a right to an abortion: The legislature could make one. Hell, if you wanted a *constitutional* right to abortion you could make an amendment specifically for it. Relying on a shitty SCOTUS ruling for so long was, not to put too fine a point on it, retarded. Cripplingly stupid. Lacking any understanding of the situation.

      Which is the abject failure of Democrats over the last 50 years: They figured it was settled. Which was stupid because ever since Roe passed, it has had detractors from every conceivable angle. Something like this was inevitable. But it’s hard to change laws, I’ve laid this out before, the system was designed to give the most people the ability to say no as possible, because if you’re going to make changes to the American system of governance, it ought to be relatively uncontroversial…. But there have been points, as recently as 2008, where Democrats had a supermajority. Where if they had really wanted to, they could have codified the Roe standards in law, so that Roe couldn’t be overturned by an eminently proper SCOTUS ruling, and there would be nothing a Republican could do about it without a supermajority of their own, and that supermajority has not existed since, and even if it did, for every Joe Manchin out there, there’s a Collins, Murkowski or a Sasse.

      But they didn’t. We could discuss ad nauseum why they didn’t…. It could be like I said earlier and they thought (foolishly) that Roe was settled, maybe they didn’t believe Republicans would actually do what they said, because some percentage of politics is performative. Maybe they thought that actually codifying Roe and forcing a vote on abortion would cost them votes. I don’t know. I don’t care. It doesn’t matter. They. Didn’t.

      Take this for the lesson it is: Live by the Sword, Die by the Sword. What is put into existence with pen-phonery can be removed with pen phonery. What is written into the constitution via a SCOTUS decision can be removed via a SCOTUS decision. And to be real, my legislative suggestion is not the be all end all: What is written into law can be written out of law. But it’s hard to get laws passed federally, and it’s a safer storage of liberty, if you want to call it that, than a SCOTUS majority. Rights aren’t a battle that you win and go home happy with. Once the heavy lifting is done and the right exists, it still needs protection, because there is always someone willing to chip away from it until the right is either warped out of recognition or just straight up gone. And so if you feel really strongly about the right, you ought to give it as much protection as you can.

      You won’t win every time. But maybe you’ll save yourself from getting blown out like this.

  2. In the interest of full accuracy (only) abortion was not illegal anywhere in the new Republic at the time the Constitution was adopted if the abortion was before “quickening” (as indicated a little too superficially in the opinion). What is “quickening?” When the movements can be felt in the womb, that is approximately 4+ months.

  3. “Quick” is archaic English for “alive”, and had a specific legal meaning which the court was referring to. Ancient Greek philosophers did not believe a fetus had independent life until it could move on its own. The law in most western nations followed the Greek tradition, thus the fetus’s first kick was known as the “quickening”, because it was evidence that the fetus was alive.

  4. Chief Justice Roberts’s concurrence is not surprising.

    He concurred in a case years ago, Graham v. Florida. It was about a juvenile who was sentenced to life imprisonment without parole for committing various crimes during a crime spree. The defendant did not kill anyone, maim anyone, rape anyone- not even groped an underage teen girl. In his opinion, the sentence violated the Eighth Amendment. He explained his reasons. The Chief Justice noted “his lack of prior criminal convictions, his youth and immaturity, and the difficult circumstances of his upbringing noted by the majority”. the life sentence “far exceeded the punishment proposed by the Florida Department of Corrections” and “state prosecutors”. Only the “sentencing judge” suggested that the juvenile defendant be imprisoned for life without parole. He pointed out that “Florida’s juvenile criminals receive similarly low sentences—typically less than five years for burglary and less than seven years for robbery” and that the “life without parole sentence was far more severe than the average sentence imposed on those convicted of murder or manslaughter, who typically receive under 25 years in prison”. He contrasted the case before him to “Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill” and ” Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son”.

    The Graham majority decided to hold that sentencing juvenile offenders to life imprisonment without parole violated the Eighth Amendment per se.

    His Dobbs concurrence is consistent with his line of thinking in Graham.

    • I’ll finish this off for Michael, because he didn’t really say how the concurrences were similar.

      “The Graham majority decided to hold that sentencing juvenile offenders to life imprisonment without parole violated the Eighth Amendment per se.” Robert’s concurrence, following his standard of judicial minimalism, held that while Graham’s sentence was not “proportionate to the crime” but that such determinations should be made case-by-case basis and that the Court’s categorical ban was “overly broad”.

      I think the decision did a good job excoriating this…. If the court took every case on a case by case basis, they’d end up having to hear the same case with minor variations a dozen times in order to get to the same place they’re at now: There was no constitutional right to an abortion, so it didn’t matter whether the law in question limited it after 15 weeks or after 15 days…. The constitutional right does not exist.

  5. The answer to that question is: “Nope! None whatsoever.” The uproar didn’t even dissuade Chief Justice Roberts from joining the majority, making Dobbs a 6-3 decision.

    6-3 on the question before the court, but 5-4 on the overturning of Roe and Casey. Roberts didn’t agree with the latter.

    Thus, the decision has been characterized, mostly correctly, as 6-3 and 5-4.

      • That’s not quite right though… Roberts signed the decision, and didn’t write a dissent in part. I suppose it doesn’t really matter, whether it was 6-3, 5-4, or 5-3-1… It’s done.

        • I have never seen a concurrence like that, where the Justice says he disagrees with the most significant part of the decision but doesn’t write, “concurring in part and dissenting in part.” He’s being justly criticized for trying to have his cake and eat it too. An it does make a difference: big SCOTUS rulings should be as close to unanimous as possible. This is 5.5 vs. 4.5.

          • I’m not nearly as knowledgeable about SCOTUS as people people who have been interested for more than a year or two, I don’t pretend to be a constitutional scholar, I’m not a lawyer….

            But, it appears to me, a layperson, that Robert’s “judicial minimalism” principle is a fig leaf he likes trotting out when the decision he knows is right makes him uncomfortable, but he doesn’t want to say why. It reeks of cowardice.

  6. There are so darn many ways to have great safe sex and yet the modern democrat remains fixated on murder both inside and outside the womb. This the party that used to chant; “Make love not war” has devolved into chanting, “Kill baby kill!”
    They do not play well with others.
    ——————————————-

    As NP pointed out; there is still plenty of territory where women are free to kill their innocent baby as many times as they get pregnant so what is all the fuss about?
    SCOTUS merely corrected bad law that people had interpreted to mean a constitutional Right (itwasnot) and returned more power to the people. More people power is something to celebrate not go to war over. What is wrong with these people?

  7. And so it begins, as I predicted, and was loudly poo pooed for.

    “As the U.S. Supreme Court announced its decision to strike down the decades-old rulings that once established a constitutional right to choose to have an abortion, Justice Clarence Thomas urged his colleagues to reevaluate other landmark cases protecting contraceptive access, same-sex relationships and same-sex marriages.

    In a concurring opinion delivered Friday, Thomas suggested that the logic used by the court’s conservative majority to overturn Roe v. Wade and Planned Parenthood v. Casey could signal similar outcomes for cases that recognized other personal rights: Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. In the Griswold case, in 1965, the court threw out a state law banning the use of contraception. Lawrence v. Texas, in 2003, established that states cannot criminalize private sex acts between consenting adults. And in Obergefell, in 2015, the court ruled same-sex couples have an equal right to marry.

    Thomas argued that since the majority ruled that the right to abortion “is not a form of ‘liberty’ protected by the Due Process Clause” of the 14th Amendment, the same reasoning should apply more broadly. ”

    The 3 dissenting Judges agree. So do the others, though they dare not say so immediately.

    • Literally banning nothing, but returning to the States legal matters not given to the national level of government by the Constitution.

      So – greater chance for smaller, more decentralized localities a chance to practice representative democracy. What’s the problem with that?

      Also, a reassertion of the Constitutional process.

      Guys – push for an amendment. The United States’ rule of law does not collapse nor do people get shuffled off to gulags because SCOTUS merely reverts to 50 unique entities the power to govern themselves.

    • Fortunately, it seems Justice Thomas is alone in this particular opinion.

      From CBS News:
      ==========
      Writing for the majority, Justice Samuel Alito noted, “The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

      “Rights regarding contraception and same-sex relationships are inherently different from the right to abortion,” Alito wrote, “because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.'”
      ===========

    • Thomas is an outlier, as he is on many issues. For the three dissenters to use his position as the supposed position of the Court’s majority is, I think, strawmanning and unethical fearmongering. Shame on them.

    • I think Thomas is right in both cases that the same logic “could” be used to overrule Griswold and Obergefell. Both decisions rested on the same kind of tortured logic as Roe.

      Generally, I wouldn’t mind revisiting them. The reason Thomas talked about this is his opposition to the “substantive due process” fiction that infects our Supreme Court jurisprudence. He’s more concerned about how these decisions were reached, not so much the outcome. I suspect the court would reach similar conclusions using different means in the cases he cites, but I’m not positive about that.

      Thomas has always hated substantive due process, “penumbras,” and similar fanciful judicial constructions not rooted in the Constitution’s text and history — and in that, he’s not alone. It has been used in some of the worst, most poorly-defended decisions in history, and he would like nothing more than to consign it to the historical dust bin.

  8. “Now I am upon Female Infirmities, it will not be unreasonable to touch upon a common Complaint among unmarried women, namely The Suppression of the Courses. This don’t only disparage their Complexions, but fills them besides with sundry Disorders. For this Misfortune, you must purge with Highland Flagg (commonly called Belly ach Root) a Week before you expect to be out of Order ; and repeat the same two Days after: the next Morning drink a Quarter of a Pint of Pennyroyal Water, or Decoction, and as much again at Night when you go to Bed. Continue this 9 Days running ; and after resting 3 Days, go on with it for 9 more. ”

    From The Young Man’s Best Companion, compiled by Benjamin Franklin, 1748, reprinted 1758.

    Apart from recommending abstaining from getting “roofied” by unethical men using opiates, it contains a number of other recipes for abortifacients, apart from those listed , most originating in Native American herbal tradition.

    See https://books.google.com.au/books?id=KttCAQAAMAAJ&pg=PA365&lpg=PA365&dq=%22The+American+Instructor%22+%22female+infirmities%22&source=bl&ots=cJz0VSDb86&sig=ACfU3U3cptcWUgwtmMjiibT4Ox808SfAMg&hl=en&sa=X&redir_esc=y#v=onepage&q=%22The%20American%20Instructor%22%20%22female%20infirmities%22&f=false

    • I don’t think Benjamin Franklin’s abhorrent lecherousness was a secret…?

      Not sure this informs the discussion of what was considered legal or ethical for the bulk of American history.

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